Guest Post: the Zimbabwe Torture Docket Case

[Christopher Gevers is a lecturer at the School of Law at the University of KwaZulu-Natal. Disclaimer: Christopher advised the Southern Africa Litigation Centre and the Zimbabwe Exiles Forum (the Applicants) on the international legal aspects of the case and assisted in the drafting of their written submissions. Twitter: @ChrisGevers]

On May 19, South Africa’s Constitutional Court heard a landmark universal jurisdiction case involving alleged crimes against humanity committed in Zimbabwe in 2007. The so-called ‘Zimbabwe Torture Docket’ case involves an administrative review application brought by two civil society organisations against the South African government’s decision not to open an investigation into the alleged crimes under the country’s Rome Statute Act.

The genesis of the case was a docket hand-delivered by the Southern Africa Litigation Centre (SALC) to the Priority Crimes Litigation Unit of the National Proseuting Authority (NPA) on 14 March 2008. The docket contained evidence of acts of torture committed in Zimbabwe following a raid on Harvest House – the headquarters of the opposition Movement for Democratic Change – on 28 March 2007. The docket further alleged that the torture was systematic and took place as part of an attack against the civilian population, pursuant to a State policy: elevating it to the level of crimes against humanity. The docket named senior security and government officials that it alleged bore individual criminal responsibility for these crimes under the doctrine of command responsibility. According to the docket, these individuals frequented South Africa regularly on both official and personal business. On this basis SALC requested the authorities investigate, and if necessary prosecute, these crimes under section 4 of the Rome Statute Act on the basis of universal jurisdiction.

On 19 June 2009 – fifteen months after recieving the docket – the NPA wrote to SALC advising it that, after consultation with the Police, it did not intend to pursue the matter, citing various reasons. In December 2009 SALC launched a legal challenge in the North Gauteng High Court to the decision of the NPA and the Police not to pursue the matter on the basis that it was irregular and unlawful under South Africa’s administrative justice principles and contrary to the rule of law (see here and here for further background). SALC was joined by a second Applicant: the Zimbabwe Exiles Forum.

The Applicants were successful in the High Court, and succesfully defended that decision in the Supreme Court of Appeal (SCA) (for a detailed discussion of these decisions see here and here). In the most recent decision the SCA found that (i) the Police were empowered to investigate the alleged offences irrespective ofwhether or not the alleged perpetrators are present in South Africa, and (ii) in this matter the Police were required  to initiate an investigation under the Rome Statute Act into the alleged offences.

This week’s case involves an appeal by the Police against the SCA’s decision (the NPA elected not to appeal). The Police adopted a twin-attack on the SCA’s decision: (i) challenging the legality of the proposed investigation under international law and South African law, and (ii) challeging the order given by the SCA as both procedurally irregular and ultra vires. OJ readers will most likely be interested in the first challenge.

In the Constitutional Court the written submissions of the Parties – which include no less than seven amici curiae (including an expert brief by inter alia John Dugard and OJ’s Kevin Heller) – raise a number of interesting international and domestic legal questions regarding the exercise of universal jurisdiction. These include: the legality of so-called universal jurisdiction in absentia under international law; the limits (if any) international law places on states’ investigative powers in UJ cases; the correct interpretation of the (domestic) Rome Statute Act’s ’presence’ requirement; whether the Convention Against Torture (and its implementing legislation) is the lex specialis in this matter; the relevance of the fact that Zimbabwe is not a party to the Rome Statute; and the question of whether there is an obligation to prosecute international crimes under international law or domestic Constitutional law.

International law observers will no doubt hope that the Constitutional Court takes up the invitation to consider these arguments fully and, regardless of where it lands on the matter, render a detailed judgment with far-reaching consequences for the exercise of universal jurisdiction by national courts.